never filed AOS

[Brother Hesekiel 2,236]

Not many people can hang in there for 2 years but the reward for filing after being married for 2 years or longer already, is that she'll get a 10-year Green Card instead of a 2-year Green Card and thus does not have to file for Removal of Conditions which saves her a chunk of money and headaches.

The Force rewards those who are patient, often, but not always.

Btw., it's possible that USCIS now requires an I-130 in addition. So what.

[baron555 934]

The deadline to file for AOS is before the expiration of your I-94. However, you are still able to adjust status after your I-94 has expired, but it is risky for the reasons stated in the link I posted. YuAndDan highlighted a specific passage that describes this.

Highlighting a generic passage gives a fslse sense when applied to the very specific case of a I-94 given from the use of a K-1. The 90 day expiration of the K-1/I-94 is to only get married. There is an assumption that the immigrant is going to stay and not "need" a future visa( because they will AOS and use their GC).

Overstsy will incur until the immigrant applies fir AOS and then they will be " no status". Before and during this time theycan not work legally and can con return yo the US if they leave. MAny folks wait many months to AOS and very very few are denied. It's really not an issue but.......yes AOS asap.

[JimVaPhuong 4,863]

The deadline to file for AOS is before the expiration of your I-94. However, you are still able to adjust status after your I-94 has expired, but it is risky for the reasons stated in the link I posted. YuAndDan highlighted a specific passage that describes this.

Show me the statute that says the deadline for a K1 to file adjustment of status is before the expiration of the I-94. You can't find it because it doesn't exist. There is no statutory deadline. To avoid being out of status, yes - they should file before the I-94 expires, but being out of status is irrelevant for an immediate relative of a US citizen who entered with a visa. The expiration of the I-94 has no bearing on their eligibility to adjust status whatsoever. There is no additional risk to adjustment of status if they are currently out of status, and there IS a statutory exclusion for this.

[Harpa Timsah 13,258]

Not many people can hang in there for 2 years but the reward for filing after being married for 2 years or longer already, is that she'll get a 10-year Green Card instead of a 2-year Green Card and thus does not have to file for Removal of Conditions which saves her a chunk of money and headaches.

The Force rewards those who are patient, often, but not always.

Btw., it's possible that USCIS now requires an I-130 in addition. So what.

I believe there was a discussion here earlier where someone showed that a K-1 entrant who files for AOS based on the approved I-129F must, by law, be given a conditional GC, even if they waited two years after marriage to file for AOS. I remember a couple in a similar situation who filed without a I-130 after two years of marriage and they were issued a conditional GC. Because of this, I would think it is best to file with a I-130 to avoid the increased cost of ROC, although I don't think it's required.

Edited January 12, 2011 by Harpa Timsah

[rsn 135]

Show me the statute that says the deadline for a K1 to file adjustment of status is before the expiration of the I-94. You can't find it because it doesn't exist. There is no statutory deadline. To avoid being out of status, yes - they should file before the I-94 expires, but being out of status is irrelevant for an immediate relative of a US citizen who entered with a visa. The expiration of the I-94 has no bearing on their eligibility to adjust status whatsoever. There is no additional risk to adjustment of status if they are currently out of status, and there IS a statutory exclusion for this.

I agree that there is no risk to AOS if you file once you are out of status - I never stated otherwise. I think you missed the point of my post. After the 90th day, unlawful presence starts. There are potential consequences associated with this.

[Barbara J 115]

From this link:

One note: if and when AOS is filed and approved, if it happens after 2 years of marriage, the resulting green-card would be a 10 year un-conditional card, skipping the removal of conditions on a 2 year card.

Thankyou YuAndDan

[YuAndDan 153]

I believe there was a discussion here earlier where someone showed that a K-1 entrant who files for AOS based on the approved I-129F must, by law, be given a conditional GC, even if they waited two years after marriage to file for AOS. I remember a couple in a similar situation who filed without a I-130 after two years of marriage and they were issued a conditional GC. Because of this, I would think it is best to file with a I-130 to avoid the increased cost of ROC, although I don't think it's required.

I have also seen in the past where, USCIS took so long to process and approve an AOS, that by the time they did approve it they were past two years of marriage, so they approved an unconditional Green-card, but this may have been a K-3 that is based on an approved I-130.

[Harpa Timsah 13,258]

For anyone's interest, here is the person who reported that even though they files for AOS after 2 years based on approved I-129F, they received a conditional GC.

http://www.visajourney.com/forums/topic/276256-late-to-apply-aos/page__view__findpost__p__4210223

And here is Jim's explanation later in that thread:

http://www.visajourney.com/forums/topic/276256-late-to-apply-aos/page__view__findpost__p__4210914

[Darnell 8,478]

The deadline to file for AOS is before the expiration of your I-94.

I'm sorry, this is wrong. There is no deadline. USCIS says 'asap' but there is no posted deadline in any law, legal ruling, court precedence, etc.

Some ppl who have waited past two years of the I-94 expiration date were REQUIRED to file an I-130 with the I-485 package.

[SuperDuper! 230]

She is subject to deportation at the moment because she does not have any legal status in the US. If she is pulled over or ever encounters an immigration check point (or travels out of the country) she may have big issues

Good luck

+1

The Reality and Common Sense Post of The Day!

Why would any spouse put their beneficiary at risk by dilly-dallying around and delaying the filing of AOS??!!

Filing for AOS should be considered as part of the entire immigration process, right up to ROC or even naturalization, and not separate pieces or phases subject to procrastination or lack of serious planning.

Overheard immigration conversation at Starbucks:

"Hello honey, good news!I just got a raise at work, and from what I figure, I will be able to file your K1 in 3 months, because by the time you go thru POE, I will have enough saved for your AOS filing, soon after we are married. It will pay to wait a little longer, and just know that the money will be there for AOS, instead of flying-by-the-seat-of-our-pants and do things willy-nilly-silly. You are worth it! Plus, I have a little extra saved up for a great honey moon week in Vegas. Don;t worry honey, I looked on Visa Journey, and some cool and smart guy recommended we have the funds securely squirreled away for AOS filing before you get here because it's very important to keep your immigration paperwork moving forward without delay, instead of hoping and praying that it will all work out some how. Yea, some rigid folks will be a Captain Obvious and incessantly repeat that there is no set deadline for AOS, but I want you to know that I care enough to do things right and quickly the first time, and not mess around. I will sacrifice and work double shifts for awhile if I have to! Oh, thanks, honey, I know I can depend on you to bring me to the US safe and sound and together we will make our dreams come true. I love you honey. I love you, too *smack*"

[JimVaPhuong 4,863]

+1

The Reality and Common Sense Post of The Day!

Why would any spouse put their beneficiary at risk by dilly-dallying around and delaying the filing of AOS??!!

Filing for AOS should be considered as part of the entire immigration process, right up to ROC or even naturalization, and not separate pieces or phases subject to procrastination or lack of serious planning.

It's DHS policy not to initiate removal proceedings against someone who is clearly eligible to adjust status. It would be a pointless waste of time because an immigration judge will always grant a stay while their AOS is adjudicated by USCIS. About the worst thing that would happen is they would hold the alien for a few days to determine that they aren't otherwise deportable, and that they are eligible to adjust status, and then they'd cut them loose.

Overheard immigration conversation at Starbucks:

"Hello honey, good news!I just got a raise at work, and from what I figure, I will be able to file your K1 in 3 months, because by the time you go thru POE, I will have enough saved for your AOS filing, soon after we are married. It will pay to wait a little longer, and just know that the money will be there for AOS, instead of flying-by-the-seat-of-our-pants and do things willy-nilly-silly. You are worth it! Plus, I have a little extra saved up for a great honey moon week in Vegas. Don;t worry honey, I looked on Visa Journey, and some cool and smart guy recommended we have the funds securely squirreled away for AOS filing before you get here because it's very important to keep your immigration paperwork moving forward without delay, instead of hoping and praying that it will all work out some how. Yea, some rigid folks will be a Captain Obvious and incessantly repeat that there is no set deadline for AOS, but I want you to know that I care enough to do things right and quickly the first time, and not mess around. I will sacrifice and work double shifts for awhile if I have to! Oh, thanks, honey, I know I can depend on you to bring me to the US safe and sound and together we will make our dreams come true. I love you honey. I love you, too *smack*"

Nine months later...

"Yes, honey, I know we saved that money for your AOS, but I got canned from my job today. Unemployment checks will be enough to pay the utilities and buy food, but it won't be enough to make the mortgage payments. We'd better hold off on the AOS because we might need that money just to survive until I can land another job."

The argument that you should plan ahead is getting tired. Nobody is disputing that. The reality is that once you start this ball rolling then sh!t is going to happen, and it isn't going to be on your timetable anymore. The argument that nothing is more important than filing the AOS in a timely fashion is false. Decisions should be based on real consequences. The likelihood of someone being deported if they have a run-in with CBP or ICE if they're out of status after marrying on a K1 is practically nil. The likelihood of a late filing causing any problems with the AOS being approved is absolutely zero. On the other hand, the likelihood of you being a pedestrian if you don't get that broken transmission fixed is 100%.

Life happens. Know the consequences of each choice you are presented with, and make decisions accordingly.

[SuperDuper! 230]

Imitation is the sincerest form of flattery!

Thanks, Jim!

[baron555 934]

I disagree if the couple hadn't ensured they have the funds to process the K-1,move the beneficiary and pay for all involved AND file for AOS then they shouldn't have started in the first place.

Many we see who do not either were clueless about the requirement or hadn't prepared for the cost from the get go.

Obviously not very good Scouts.